The Death Penalty Today: Defend It, Mend It or End It?

Since the Supreme Court lifted its moratorium on the death penalty 30 years ago, 38 states and the federal government have reinstated capital punishment.

In recent years, there has been a nationwide debate over the proper application, morality and constitutionality of the death penalty. Some argue that there are systemic flaws in its application and that those on death row are disproportionately poor, mentally ill or African-American. Abolitionists claim that if the death penalty can not be applied justly in all cases, it should not exist at all. Some embrace a moral stance that “respects life” in all its stages and circumstances.

Those in the pro-death penalty camp claim that abolitionists ignore the individual circumstances of each case and that some crimes are so heinous that the only appropriate punishment is death. Furthermore, they argue that the existence of the death penalty deters violent crime.

The Pew Forum, together with the Federalist Society and the Constitution Project, held an event examining the application, morality and constitutionality of the death penalty in the United States, focusing on issues such as habeas corpus review, clemency, the Eighth Amendment and adequate defendant representation.

Speakers:

Samuel Millsap Jr., Former District Attorney, Bexar County, Texas

William Otis, Counselor to the Head of the Drug Enforcement Administration, U.S. Department of Justice, Washington, D.C.

Kenneth Starr, Dean, Pepperdine University School of Law, Malibu, Calif.

VIRGINIA SLOAN: Good afternoon. I’m Virginia Sloan and I’m president of the Constitution Project. This is the fourth in a continuing series sponsored by the Constitution Project, the Federalist Society and the Pew Forum on Religion & Public Life, and I’d like to welcome you on behalf of all three organizations.

First to speak will be Sam Millsap, the former Bexar County district attorney in Texas who prosecuted Ruben Cantu. Mr. Cantu was executed in 1992; recent events indicate that he was very likely innocent.

Our second speaker is Kenneth Starr, dean of the Pepperdine Law School and a former judge and solicitor general of the United States. Dean Starr has represented two clients of death row.

Third will be Bryan Stevenson, executive director of the Equal Justice Initiative in Alabama and a law professor at NYU and one of the country’s leading capital defense lawyers.

And fourth will be William Otis, a longtime public servant who has served in the White House and as an assistant U.S. attorney. Mr. Otis is speaking today in his individual capacity.

SAMUEL MILLSAP: Let me begin by saying that I’m Samuel Millsap and I am a recovering supporter of capital punishment. I would like to be able to say to you, as I often do when I speak, that it’s an honor to be with you. As I talk about this issue in the specific context of the Cantu case, I think you’ll understand that I’m not honored by being here and that it’s understandable that I would prefer to be back in San Antonio having a root canal. But I do consider it a privilege and in fact a responsibility for me to address this issue and do so, I hope, in a responsible way.

I came to Washington with an approach to this topic that was going to be somewhat clinical, and that changed last night. I was lucky enough to see a wonderful exchange that was hosted by the Constitution Project on consensus-building and then to go from there to the Holocaust Remembrance Project dinner. The combination of those two events back to back was for me absolutely profound. I was reminded that we need to talk to each other and not hurl allegations, that we need to listen to each other and that we need to try to solve problems together.

I was further reminded that lawyers have obligations that other folks simply don’t have. I believe that prosecutors have obligations that other lawyers don’t have. I believe that prosecutors who do good things and who produce good results deserve credit for that, but I likewise believe that when bad things happen in connection with the prosecution of criminal cases any criminal case, but particularly a capital murder case it’s incumbent upon the prosecutor to assume responsibility for the results. It’s incumbent on the prosecutor to be positive and look forward and ask the question, how do we make sure that this never happens again?

And that’s what I want to talk about today briefly. There are four basic principles that underpin everything that I have to say. The first and the most basic is this notion that we have in the criminal justice system that criminal defendants are presumed innocent until they’re proven guilty.

The second principle that I think is crucial and that underpins everything that we do in criminal justice is the notion that the system is designed and has functioned for more than 200 years with one overriding goal, and that is to make sure that the innocent are protected. And in fact what our system should do, and I think fails to do today, is to actually guarantee the protection of the innocent.

Principle number three is an idea that I heard over and over again in law school and I have to confess that I haven’t heard it very much recently that it’s better that 100 guilty men go free than that one innocent man be convicted. And I think it’s important that we remember that.

My final point is to remind everybody, particularly prosecutors, what the statutory duty of a prosecutor in Texas and I think in most jurisdictions is: it’s the duty of the prosecutor not simply to convict, but to do everything in his or her power to see to it that justice is done. And that means not just during the investigation and the trial; it also means after the trial is over, whether or not there’s been a conviction.

Do we have press people from Texas? I’m going to have some things to say at the end of my remarks that are directed to the state of Texas and I hope you’ll listen very carefully. I’ve been a lifelong supporter of the death penalty. I’ve been a full-throated supporter of the death penalty and was until the year 2000 when I began to have reservations as a result of three or four things that happened in a very short period of time.

I left office in 1987 and went back to a comfortable private practice and closed the door on that part of my life, but I’ve come to the conclusion — and it’s based not on the Cantu case specifically but rather on other things that I’ve seen happen in the criminal justice system — that the system as it relates to capital murder is simply broken. It’s my view in fact that because it’s driven by human beings and decisions that are made by human beings, it can’t be fixed, and that as a result what has to happen is that the option to put people to death has to end.

I would say to Justice Scalia, who said in his concurring opinion in Kansas v. Marsh that he knew of no innocent man who had been executed, that he needs to look only to the state of Texas, to my state. Cameron Willingham was certainly innocent. In fact, in the Cameron Willingham case, there wasn’t even a crime. Carlos De Luna, the most recent, was probably innocent. And the person I prosecuted in 1985, Ruben Cantu, was probably innocent. And it didn’t matter as far as I’m concerned in my position today whether Ruben Cantu was in fact innocent or not: the system simply doesn’t work. What we see over and over again are situations where witnesses who have no reason to lie recant testimony and for good reasons.

I’m running out of time and I’ll have an opportunity to develop this more fully in response to your questions, but one of the things that I want to say today to the people of Texas is that it’s time for this hand-wringing about the Cantu case to end. It’s time for the people of Texas to be positive about how we move forward. It’s time for us to think about how we make sure that there will never be another Cameron Willingham.

And I think — and this was really hammered home last night at the Holocaust Remembrance Project dinner — it’s important and incumbent upon the prosecutors who drive this system to assume responsibility. And so today I want to assume personal responsibility for the execution of Ruben Cantu.

I want to say a word as well to the members of the jury in the Cantu case, at least those who have made statements. There’s enormous confusion, as you can well imagine. There are people who believe that they’re responsible for the fact that he was sentenced to die. They wonder whether in fact he was innocent, and the thing that I would say to the members of the jury in the Cantu case is the following: you did your job very well; you did only what we as prosecutors asked you to do. You made the only decision that you could’ve made based on the evidence that was available to you. You are not responsible for the execution of Ruben Cantu. I am responsible for the execution of Ruben Cantu as the prosecutor who made all of the decisions that resulted in the presentation of that case to the grand jury, all of the decisions as to how that case would be prosecuted, and all of the decisions as to how that case would be argued and what we would ask the jury to do.

KENNETH STARR: In his inimitable way, Oliver Wendell Holmes Jr., in speaking about clemency, described it as “anything other than” — Holmes’ words — “a private act of grace from an individual happening to possess power. It is rather part of our constitutional scheme.” To be sure, the role of clemency was terribly important in a system not long past in which death sentences were mandatory, but it is important still today, especially in an era when the trend line is in favor of achieving values of finality in the system and in particular to that extent limiting the role of federal courts. Very briefly, my own experience in recent years — in the Robin Lovitt case in Virginia, working with Rob Lee of the Virginia Capital Punishment Project, and in the still-unfolding Michael Morales case in California — suggest to me that governors and their advisors are tending to neglect this historic role of clemency and pardon in the system.

I am very grateful that former Governor Mark Warner of Virginia granted clemency to Robin. I am very delighted that he did it in light of what we felt was a grievous misconduct in the destruction of DNA evidence, which we also believe was used questionably at the trial. That’s a pathology in the system. We have, however, not been encouraged thus far by the process in California, where Michael Morales should not be on death row. He did commit a terrible offense; he deserves severe punishment and he acknowledges the justice of his punishment, but not on death row.

His partition for clemency has been supported by the sentencing judge, Charles McGrath, and you have a copy of that letter available to you. It is an extraordinary letter to the governor urging clemency because the only reason that Michael is on death row is because of what we now know to be a perjured testimony at the sentencing phase by a jailhouse informant.

The last governor of California to grant clemency was Ronald Wilson Reagan. There have been no clemency grants since Governor Reagan left office. My friends, that was a long time ago.

Michael Morales’ case is illustrative of what I think is a terrible trend, abject deference to the judicial system with its inevitable flaws and a frank unwillingness on the part of virtually every governor in the country, and those who advise them, to fulfill their assigned role in our constitutional structure. This isn’t just a Supreme Court admonition; it is taking note of a constitutional structural point.

It’s appropriate at a Federalist Society gathering to take note of Madison and Hamilton’s lifting up — Hamilton more so than Madison, but both did — the need for energy in the executive. And even Mr. Jefferson, the staunch adherent of the anti-federalist republican tradition, agreed by his actions in office that the executive should move with energy. And even in our bloodiest war, which pit brother against brother, Mr. Lincoln took time to review personally the files of those seeking clemency. It was part of his greatness. Perhaps we would do well to ask our governors to reread the last paragraph of Lincoln’s Second Inaugural.

BRYAN STEVENSON: For the last 20 years I’ve actually been representing people on death row, and I’ve spent too many hours next to people who are about to be electrocuted, watching the hair shaved off their body before they’re put in the electric chair or squirming on lethal injection tables and seeing the tears and the anguish. And I believe that the death penalty ought to be abolished because it is corruptive. It corrupts all of us. It is corrupting our courts. It is corrupting prosecutors. It is corrupting police. It is corrupting defense attorneys. It is corrupting jurors. It is corrupting our society. I think that because I see so much evidence of it, so much pain and trauma. And it’s not just that we’re unwilling to talk about it. We don’t have the will in this country to recognize what we have to do for people who are disfavored.

The death penalty is supported in America because we have a lot of people who preach fear and anger, and they want us fearful and angry about crime, and they want us fearful and angry about so many things. And on that high we can tolerate a lot of error. Well, I think we have to stop there. We ultimately have to be a society that recognizes that we will be judged not by how we treat privileged people, not by how we treat powerful people, but by how we treat condemned people, how we treat the poor, how we treat the disadvantaged. That’s how we measure our civility. And when you look at what’s going on in the death penalty arena, we are doing horribly.

We have a society that we all recognize is driven by wealth. Lawyers in this room know that the legal system is incredibly wealth-sensitive. Our system treats you much better if you’re rich and guilty than if you’re poor and innocent. Innocence is not the most useful thing you can take into court; it’s wealth. If you’ve got wealth, you get a different outcome.

It’s amazing to me: we’ve had over 1,000 executions in this country. If most of those folks had been represented by anyone on this panel, likely they would not have been executed, and that ought to say something to us not about the offenses involved in those crimes, but about the nature of our criminal. And the corruption isn’t just seen in the way we deal with the poor; it’s also seen in the way we deal with race in this society. I grew up in a community where the people I lived with were marginalized. It was a segregated area and we couldn’t go to the public schools, and I saw how being disfavored changed your status in America. And I want very much for this country to get past that legacy, but instead what we do in the death penalty arena is we feed this history of racial apartheid.

And so in my mind this issue should not be just a question of whether people deserve to die, but whether we deserve to kill. We have tolerated so much error, so much injustice, so much unfairness; we have a system that is driven by poverty, that is undermined by race.

And with that history and with that awareness and with that consciousness, I think it’s time for the death penalty to end. It’s time that we put this behind us so we can begin to deal with these vexing problems of poverty and race and dysfunction and injustice.

WILLIAM OTIS: The burden of proof in this debate about the death penalty is on the abolitionist side, and it is not merely to show that there are questionable or sympathetic or problematic cases, as there are in every aspect of litigation. What they must show is that every execution is wrong. Abolition means abolition, the end of it — period.

There are two central problems, I think, with a strict abolitionist argument. One is that it is a one-size-fits-all, don’t-pester-me-with-the-facts sort of position. It simply does not matter, under that position, what the killer did, how utterly incontestable the evidence is of his guilt, how gruesome or cold blooded or calculated it was, how many people he killed, or how many people he killed in the past. None of that matters. A position like that significantly oversteps the justifications typically offered on behalf of the abolitionist position: bad lawyering, possible racism in any given case, that the police are hiding or manufacturing evidence. All of those things can be gone over and are gone over in great detail and over a long period of review in case-by-case analysis under the most exacting standards that the law knows. But that is a far cry from justifying complete abolition in every case no matter what.

I would be hard pressed to tell you that there is anything in the law that could not benefit from reformation, but I think what we need to watch out for is abolition being impersonated by a call for reformation. And in particular I want to mention the call for a death penalty moratorium, which in my opinion is abolition in disguise. Death penalty opponents know that they cannot sell outright abolition because the public is against it. The public has seen enough of Timothy McVeigh and John Wayne Gacy and some of these other gruesome killers and is simply unwilling to put aside for all time and in any circumstances its right to allow the jury to decide on a death penalty. So we hear the call for a moratorium.

And the last thought I want to leave you with in my opening statement is this: we have had a moratorium before in this country. It lasted for ten years, from 1967 to 1977. In the preceding ten years when we had executions — 289 of them — there were 95,000 murders in this country. Immediately after that, during the 10-year moratorium from 1967 to 1977, we of course had zero executions and 180,000 murders — almost double the number. The truth of the matter is that the death penalty has a significant deterrent effect as these numbers prove beyond serious argument. Therefore it is the death penalty and not abolition of the death penalty that in the end will save innocent life.

About Pew Research Center Pew Research Center is a nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping the world. It conducts public opinion polling, demographic research, media content analysis and other empirical social science research. Pew Research Center does not take policy positions. It is a subsidiary of The Pew Charitable Trusts.